Prevention and Combat Money Laundering and Terrorism Financing: ASAE’s Regulation on the General and Specific Duties

Regulation No. 1191/2022 of 26th December

"Autoridade de Segurança Alimentar e Económica” (Food and Economic Security Authority, hereinafter "ASAE") approved the Regulation no. 1191/2022 on the General and Specific Duties to Prevent and Combat Money Laundering and Terrorist Financing (hereinafter "Regulation") and revokes Regulation No. 314/2018, of 25th May.

The Regulation integrates the Portuguese legislative and regulatory framework on prevention of Money Laundering and Terrorism Financing (hereinafter "MLTF") and is applicable to the entities subject to ASAE supervision (“obliged entities”), as defined in Law No. 83/2017, of 18th August, as amended.

ASAE, as a sectoral authority, is responsible for verifying compliance with the duties imposed on non-financial entities, not subject to the supervision of another specific sectoral authority.
For the purposes of the Regulation, obliged entities are natural or legal persons who carry out their activities from Portugal, through a physical establishment or representation (namely a branch, agency, subsidiary or delegation).

All natural or legal persons who carry on an economic activity in Portugal by means of distance contracting, when carrying on their activity through an effective establishment, regardless of where their head office is located, are also considered subject to Portuguese law.

The Regulation also distinguishes between (i) the type of activity the entities perform, regardless of transaction values and (ii) the type of activity the entities carry on, together with the minimum transaction values and the means of payment, setting a list of entities that are covered by the Regulation and by ASAE supervision, provided they are not subject to the supervision of another sectoral authority.

The entities obliged and covered by the Regulation under analysis are subject to the following preventive duties:

  • Duty of control.
  • Duty of identification and diligence.
  • Duty of communication.
  • Duty to abstain.
  • Duty of refusal.
  • Duty of conservation.
  • Duty to examine.
  • Duty of collaboration.
  • Duty of non-disclosure.
  • Duty of training.

The Regulation specifies and clarifies these duties and defines new specific obligations of the obliged entities. In this context, the main changes and innovations of the Regulation in relation to the previous regulation are the following:

  • Duty of control

Within the scope of the internal control system to be implemented by obliged entities in respect of the prevention of MLTF, the new Regulation introduces:

i. The obligation to adopt and implement a Manual on Prevention and,

ii. New rules regarding the frequency of periodic evaluation of the effectiveness, quality and adequacy of policies and procedures for specific risks of MLTF.

This Manual, to be made available to all employees, must contain, at least: a) Identification and evaluation of the concrete MLTF risks associated to the activity carried out by the obliged entity; b) Nominal and functional identification of the relevant employees; c) Internal control procedures to mitigate the risks identified; d) Procedures for the conservation and processing of personal data.

  • Duty of identification and diligence

Regarding the duty of identification and diligence, the new Regulation provides for new forms, which must be filled in entirely by the obliged entities.

  • Duty of training

Within the scope of the training duty, the Regulation provides for new specific requirements in relation to training entities and to the programme, attendance and workload and training records.

  • Distance contracting

An innovation in the new Regulation is the provision of rules on distance contracting. In this context, specific obligations are established regarding distance contracts, namely regarding compliance with the duty of identification and due diligence and verification of the identification documents of the counterparty.

Non-compliance with any of the conditions or requirements set out in the new Regulation constitutes an administrative offence for breach of the specific duties to prevent and combat MLTF, in accordance with Articles 169 and 169-A of Law No. 83/2017.

Since the Regulation is complementary to Law No. 83/2017, the provisions of this latter are to be observed, in everything that is not provisioned in the Regulation.

The Regulation enters into force within 60 days after the date of its publication, that is, on 24th February 2023, and Regulation No. 314/2018, of 25th May remains in force until that date.

To access to the entire wording of Regulation No. 1191/2022, please click Regulamento n.º 1191/2022, de 26 de dezembro | DRE (only in Portuguese language)

For more information on this subject, please contact:

Miguel Silva Cordeiro
Head of the Banking and Finance Department

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